Bowen v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

November 7, 2017

JOHN BOWEN, JR., PLAINTIFF,v.COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

ORDER

HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

This
matter is before the Court on the parties' joint motion
for an award of attorney fees and costs in the amount of $4,
615.00 under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. (Doc. No.
27[1]
[“Mot.”].) For the reasons that follow, the
motion is granted.

A.
Background

Plaintiff
filed this action on March 31, 2017, seeking review of the
Commissioner of Social Security's
(“Commissioner”) decision denying plaintiff's
application for a period of disability, disability insurance
benefits, and supplemental security income. (Doc. No. 1.)
Subsequently, the parties filed a joint motion to remand the
case for further administrative proceedings pursuant to the
fourth sentence of 42 U.S.C. § 405(g). (Doc. No. 22.)
The joint motion was granted, and the Court ordered the case
remanded for further proceedings. (Doc. Nos. 23 and 24.)

According
to the motion, the parties' agreement concerning attorney
fees and costs represents a compromise and settlement of
disputed positions, and will fully satisfy all of
plaintiff's fees, costs, and expenses under 28 U.S.C.
§ 2412. (Mot. at 654.[2]) The parties acknowledge that an award
to plaintiff under the EAJA is subject to offset by any
outstanding federal debt owed by plaintiff pursuant to
Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 117
L.Ed.2d 91 (2010). (Id.)

B.
Discussion

The
EAJA requires the government to pay a prevailing social
security plaintiff's reasonable attorney fees and costs
“unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C.
2412(d)(1)(A); see Howard v. Barnhart, 376 F.3d 551,
554 (6th Cir. 2004). “Prevailing party” status is
achieved within the meaning of the statute when a plaintiff
succeeds in securing a sentence four remand order.
Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct.
2625, 125 L.Ed.2d 239 (1993). Plaintiff brought this action
for judicial review of the Commissioner's decision and
succeeded in securing a sentence four remand for further
consideration of his application. Thus, plaintiff is a
prevailing party within the meaning of the statute.

Plaintiff's
counsel's EAJA time statement submitted in support of the
motion indicates that 26.50 hours[3] were expended in this case.
(Mot. at 657.) The motion seeks an award of $4, 615.00. This
amount, divided by the number of hours for legal services
rendered, results in an hourly rate of $174.15.

The
EAJA provides that the amount of an attorney fee award shall
be based on prevailing market rates, but shall not exceed
$125 per hour, unless the Court determines that the cost of
living or special factors justifies a higher fee. 28 U.S.C.
§ 2412(d)(2)(A)(ii). The change in the cost of living
over the years since the $125 per hour rate was established
justifies an increase in the statutory rate. See Crenshaw
v. Commissioner of Social Security, No. 1:13CV1845, 2014
WL 4388154 at *3 (N.D. Ohio Sept. 5, 2014). The appropriate
measure of inflation in this geographic area is the
“Midwest Urban” CPI.[4]Id. (collecting
cases). The Court finds that the parties' agreed
compromise hourly rate of $174.15, considering adjustments
for cost of living increases since the enactment of the EAJA,
is both supportable and reasonable. See Sizemore ex rel.
C.J. v. Comm'r of Soc. Sec., No. 1:13-CV-521, 2015
WL 1647458, at *2 (S.D. Ohio Apr. 13, 2015) “[T]he
hourly rate of $ 175.00, adjusted for cost-of-living
increases since enactment of the EAJA, and the 20.6 hours
expended that are claimed by counsel are reasonable.”);
28 U.S.C. § 2412(d)(2)(A).

Finally,
it is the government's burden under the EAJA to show that
its position denying benefits was substantially justified.
Wilson v. Astrue, No. 2:10-CV-463, 2011 WL 3664468,
at *1 (S.D. Ohio Aug. 19, 2011) (citations omitted).
Defendant has made no attempt to demonstrate that the
government's denial of plaintiff's application was
substantially justified, and the Court is not aware of any
special circumstances that would make an attorney fee award
unjust. Accordingly, the Court awards to plaintiff attorney
fees and costs in the sum of $4, 615.00.

EAJA
attorney fees are subject to offset to satisfy pre-existing
federal debt owed by plaintiff. Payment of any amount
remaining after offset may be made directly to plaintiff s
attorney if plaintiff has assigned EAJA attorney fees to his
attorney. See Crenshaw, 2014 WL 4388154 at *5.
Counsel for the parties shall promptly verify whether
plaintiff owes any pre-existing debts to the United States
that are subject to offset, and any such debt will be offset
against the EAJA award granted herein. Defendant will direct
that the EAJA award herein that is not subject to offset be
made payable to plaintiffs attorney pursuant to any attorney
fee assignment between plaintiff and his counsel. The
Commissioner will direct the Treasury Department to mail any
check in this matter to the business address of plaintiff s
counsel.

C.
Conclusion

For the
reasons set forth herein, the parties' joint motion for
an award of EAJA attorney fees and costs pursuant to 28
U.S.C. § 2412 in the amount of $4, 615.00, is granted.
This amount shall be paid in accordance with the procedure
outlined above.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;IT
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.